The 5th amendment

[DrDeth]

[QUOTE=MaxTheVool]

If a crime was committed last night and I refuse to say where I was last night, I agree that the hot pokers shouldn’t come out, but at the same time it’s preposterous to claim that my refusal to say where I was isn’t suspicious, and isn’t something that juries ought to be able to weigh in their deliberations. (And no, I’m not saying it’s anywhere near convincing proof of my guilt… but criminal cases (as I understand it) are usually built up out of lots and lots of small pieces, no one of which is proof by itself.)
[/QUOTE]

I have also been infomed by Counsel (one of whom is a Judge) that once the Police read you your rights you should only say “I want to speak to my/an attorney. Am I free to go?” No matter how innocent you may think you are. In face of continued questioning of the inevitable “Hey don’t you want to cooperate?” simply contine to repeat “I want to speak to my/an attorney. Am I free to go?”.

And no that should not be entered into evidence against you.

[MaxTheVool]

[QUOTE=DrDeth]
I have also been infomed by Counsel (one of whom is a Judge) that once the Police read you your rights you should only say “I want to speak to my/an attorney. Am I free to go?” No matter how innocent you may think you are. In face of continued questioning of the inevitable “Hey don’t you want to cooperate?” simply contine to repeat “I want to speak to my/an attorney. Am I free to go?”.

And no that should not be entered into evidence against you.
[/QUOTE]

But what you say to the police when they have just arrested you and you are being interrogated and haven’t talked to a lawyer is in no way comparable to what you should say in a trial when you HAVE talked to your attorney, which is much more what we’re discussing here.

[Bricker]

[QUOTE=Czarcasm]
I was merely asking for help in understanding. First one gathers as much information as possible, then one analyzes the information. Do you disapprove of this method?
[/QUOTE]

Sorry - my read was that you were arguing for a point rather than asking a question. My apologies.

[Czarcasm]

[QUOTE=Bricker]
Sorry - my read was that you were arguing for a point rather than asking a question. My apologies.
[/QUOTE]

Accepted, of course.

[RTFirefly]

[QUOTE=Bricker]
I have no idea.

I know how it works in the criminal trial context in my jurisdiction. I assume there’s a similar procedure for a civil trial.

How it would work with respect to testimony compelled by Congressional subpoena… I have no clue. Shockingly, my career as a public defender had me representing people called before Congress… exactly zero times. And my subsequent career as a federal contractor has placed me in contact with lots of people who arguably SHOULD be called before Congress, but here again the actual number is zero.

So I got nuthin’.
[/QUOTE]
How about telling us how it works in a criminal trial in your jurisdiction? Since the Fifth Amendment doesn’t go away when crossing state lines, or when entering the U.S. Capitol, we might learn how the Fifth Amendment might be kept from being used as an unlimited “get out of testifying free” card, without issuance of blanket immunity with respect to any crime the witness might have ever committed.

[Polycarp]

[QUOTE=Bricker]
Cross-posed from the relevant GQ thread:
[/quote]

Link, please? This is fascinating, and I’m learning a lot from it. I’d love to follow up in the GQ thread.

@Bricker

Immunity can, of course, remove the Fifth Amendment’s protections. There are two kinds of immunity - use and transactional. Use immunity is considered sufficient protection to negate the Fifth Amendment’s protections – Murphy v. Waterfront Commission. Use immunity merely says that your testimony cannot be used against you. Transactional immunity, the only kind with real meaning, forbids a prosecution based on the transaction, regardless of the source of the evidence against you.

And I presume that a Congressional committee, or perhaps it takes one full house of Congress, can hand out such fully-binding immunity in exchange for testimony, when it seems appropriate?

Incidental, and purely off-the-subject, question: Is a grant of immunity valid with regard to the concurrent-jurisdiction double-jeopardy exception? In other words, Vinnie Da Thug is granted transactional immunity by, say, the New Jersey court system for his testimony into the alleged gang takeover of the take-out pizza industry. But can the Feds. ignore that grant of immunity by the state and prosecute him under RICO or some other Federal crime? It seems, somehow, unjust to compel testimony under grant of immunity and then prosecute under a different sovereignty. (Related: what if it’s two states? Can one bind the other?)

[Bricker]

[QUOTE=RTFirefly]
How about telling us how it works in a criminal trial in your jurisdiction? Since the Fifth Amendment doesn’t go away when crossing state lines, or when entering the U.S. Capitol, we might learn how the Fifth Amendment might be kept from being used as an unlimited “get out of testifying free” card, without issuance of blanket immunity with respect to any crime the witness might have ever committed.
[/QUOTE]

In my jurisdiction, tie goes to the runner.

By that I mean that if a potential witness asserts a Fifth Amendment privilege, the prosecution’s only real tool is to offer a grant of use immunity. The immunity typically covers only the crimes under investigation. If the witness were to claim that this grant of immunity were insufficient, the prosecution can grant use immunity on a broader scale conditioned on the crime’s relationship of the sought testimony. That is, if the issue is bribes offered to building inspectors, the witness cannot request a broad grant of immunity, receive it, and have the following exchange:

Q: Did you ever see anyone in your office accept a bribe to approve an inspection?
A: No, but I wouldn’t have noticed anyway, being as how I was so preoccupied with the triple murder I committed. Good thing I have immunity now, eh?

That answer has no reasonable relation to the question being asked, and would exceed the bounds of a normal immunity agreement. It would be considered voluntary testimony. The immunity grant would typically cover only criminal liability that was reasonably elicited from the direct examination of the witness. If a question does not reasonably compel the disclosure of the information, or the answer is not reasonably related to what is being asked, the grant of immunity does not apply and the Fifth Amendment is not implicated. See generally Minnesota v. Murphy, 465 U.S. 420 (1984); see also United States v. Monia, 317 U.S. 424 (1943) “…a witness from testifying voluntarily…” to a matter is not protected by the Fifth Amendment.

So in my “child porn” hypo above, the government would offer immunity for whatever crimes might apply to firing US Attorneys. And Congress would keep its questions limited to that issue. If Congress crossed the line into territory not covered by the grant of immunity, and elicited testimony about additional crimes, the witness would still be immune from prosecution using that testimony. (Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)).

[Bricker]

[QUOTE=Polycarp]
Link, please? This is fascinating, and I’m learning a lot from it. I’d love to follow up in the GQ thread.

[/quote]

Firing US Attorneys - What crime was committed? [Note: thread is from 2007]

And I presume that a Congressional committee, or perhaps it takes one full house of Congress, can hand out such fully-binding immunity in exchange for testimony, when it seems appropriate?

Yup. From a practical standpoint if nothing else: testimony compelled without a grant of immunity in place cannot be used against a witness in a subsequent prosecution.

Incidental, and purely off-the-subject, question: Is a grant of immunity valid with regard to the concurrent-jurisdiction double-jeopardy exception? In other words, Vinnie Da Thug is granted transactional immunity by, say, the New Jersey court system for his testimony into the alleged gang takeover of the take-out pizza industry. But can the Feds. ignore that grant of immunity by the state and prosecute him under RICO or some other Federal crime? It seems, somehow, unjust to compel testimony under grant of immunity and then prosecute under a different sovereignty. (Related: what if it’s two states? Can one bind the other?)

Excellent question!

The answer starts back in 1892 with a Supreme Court case called Counselman v. Hitchcock, in which the Court threw out an immunity statute because granted only narrow use immunity; it didn’t, for example, prohibit derivative use. While your testimomny itself couldn’t be used as direct evidence, it could be used as the basis for investigatory work which then could be used. Counselman trashed that idea, and Congress responded with a law that acted as a pardon for matters revealed by compelled testimony – essentially, what we now call transactional immunity. The Court upheld that law, although four dissenters argued that the law should go even further; they felt that the public humiliation and reprobation in admitting to a crime, even if the crime could never be prosecuted, should be considered a penalty and prevented by the Fifth Amendment.

That was essentially the state of the law up until the early 1960s, when the Court applied the self-incrimination clause of the Fifth Amendment to the states by way of the Fourteenth Amendment. They then had to face precisely the question you raise: a state could grant immunity in its own courts with no problem, but had no power to grant federal immunity and certainly no power to grant immunity from another state’s prosecution. On the other hand, to tell a state that they could never compel a witness to testify if his conduct had the slightest relation to criminal liability in federal jurisdiction or in another state’s jurisdiction would have severely vitiated the states’ ability to investigate crimes.

Suddenly, the “use” immunity from Counselman started to look pretty good. So Congress enacted a sweeping use immunity statute that forbid federal prosecutions from using (or derivatively using) testimony compelled at state prosecutions, and forbid other states from using or derivatively using testimony compelled at state prosecutions. This scheme was upheld in Murphy v. Waterfront Commission of New York Harbor and Kastigar v. US.

Note that the states and feds are bound by use immunity, not transactional. As Kastigar points out, use and derivative use immunity are exactly what the Constitution protects against. Transactional immunity is a broader protection than is required by the Fifth Amendment.

[Cervaise]

[QUOTE=Bricker]
If Congress crossed the line into territory not covered by the grant of immunity, and elicited testimony about additional crimes, the witness would still be immune from prosecution using that testimony.
[/QUOTE]
On the one hand, because lawyers and others closely associated with the law are hugely over-represented among our national elected officials, one might consider it safe to presume that they’d be smart enough to stay away from these lines of questioning. On the other hand, there are many different specialties in law; I would be extremely surprised if attorneys with a criminal-law background were more represented in Congress than, say, corporate lawyers, who may or may not know the nuances of this kind of thing.

So I guess what I’m asking is, given the typical legal background of your average Congresscritter, are they capable of observing the guidelines and boundaries of such an immunity grant, in order to preserve the possibility of prosecuting the witness for, oh, I don’t know, employing an illegal as a housekeeper or grand theft auto or whatever, or are they, through ignorance or arrogance, more likely to barrel ahead with national-stage grandstanding and thereby potentially muck up potential proceedings against the witness before them?

(I’m not really expecting an answer. It’s mostly just rhetorical musing.)

[Bricker]

[QUOTE=Cervaise]

So I guess what I’m asking is, given the typical legal background of your average Congresscritter, are they capable of observing the guidelines and boundaries of such an immunity grant, in order to preserve the possibility of prosecuting the witness for, oh, I don’t know, employing an illegal as a housekeeper or grand theft auto or whatever, or are they, through ignorance or arrogance, more likely to barrel ahead with national-stage grandstanding and thereby potentially muck up potential proceedings against the witness before them?

(I’m not really expecting an answer. It’s mostly just rhetorical musing.)
[/QUOTE]

Ask Oliver North.

For those that missed it, Marine Lieutenant Colonel Oliver North was compelled to testify in front of Congress regarding his involvement in illegal sales of U.S. arms to Iran and the use of funds derived from those sales to assist the Contra rebel group in Nicaragua. North was subsequently prosecuted and convicted for those crimes, but his conviction was overturned because of the derivative use of his compelled Congressional testimony.

[DSYoungEsq]

[QUOTE=Bricker]
Ask Oliver North.

For those that missed it, Marine Lieutenant Colonel Oliver North was compelled to testify in front of Congress regarding his involvement in illegal sales of U.S. arms to Iran and the use of funds derived from those sales to assist the Contra rebel group in Nicaragua. North was subsequently prosecuted and convicted for those crimes, but his conviction was overturned because of the derivative use of his compelled Congressional testimony.
[/QUOTE]

Yes, but did they LEARN anything…

[Polycarp]

Of course. The U.S. Government no longer covertly funds internal movements to overthrow foreign governments they don’t approve of. Now they just go ahead and do it openly!